JAVED MASOOD AND ANR.versusSTATE OF RAJASTHAN

                        [2010) 3 S.C.R. 236


A                  JAVED MASOOD AND ANR.
                                  v.
                      STATE OF RAJASTHAN
                (Criminal Appeal No. 1522 of 2008)
                         MARCH 09, 2010
B
      [8. SUDERSHAN REDDY AND SURINDER SINGH
                     NIJJAR, JJ.]

       Penal Code, 1860: s.302 - Conviction under, by courts
C below, on the basis of evidence of eye witnesses - Justification
  of - Held: On facts, not justified - Entire prosecution case
  rested upon the Parcha Bayan lodged by PW-5 - PW-5 was
  brother of deceased and a highly interested witness -
  Evidence of PW-6 completely ruled out presence of PW-5 at
o the scene of offence - Once his presence is disbelieved,
  whole case of prosecution would collapse - The police
  personnel who came on the spot after incident and took
  deceased to hospital deposed that PWs were not present at
  the scene of offence - Police personnel were independent
E witness and there was no reason for them to, depose falsely.

        Constitution of India, 1950: Article 136 - Scope of- Held:
  Concurrent findings of facts are not usually interfered with in
  exercise of jurisdiction under Article 136 by re-appreciation
  of the evidence unless it is clearly established that courts
F below altogether ignored vital piece of evidence and rested
  their conclusion placing reliance on the evidence which could
  not be accepted on the face of it.

       Prosecution case was that on the fateful day,
G accused persons equipped with deadly weapons
  reached the spot of occurrence and started inflicting
  injuries on the deceased and others. Thereafter accused
  persons fled away. The police van reached the spot and
  removed the deceased to the hospital where he was
H                               236
     JAVED MASOOD AND ANR. v. STATE OF                 237
                RAJASTHAN
declared dead. PW-5 lodged a Parcha Bayan. The                A
prosecution in support of its case examined 33
witnesses. Trial Court accepted the prosecution case
and convicted the appellants under Sections 148, 201 and
302 IPC. On appeal, High Court set aside conviction under
Sections 148 and 201. It however upheld conviction            B
under Section 302 IPC. Hence the present appeal.

    Allowing the appeal, the Court

     HELD: 1.1. The concurrent findings of facts are not
usually interfered with in exercise of jurisdiction under     C
Article 136 of the Constitution of India by re-appreciation
of the evidence unless it is clearly established that the
courts below altogether ignored vital piece of evidence
and rested their conclusion placing .reliance on the
evidence which cannot be accepted on the face of it.          D
[Para 8) [244-F-G]

     1.2. The evidence of PW-6 is very crucial. It is in his
evidence that on the fateful day the deceased alone had
come on a motorcycle to his shop at about 12.30 p.m. to E
repay an old debt. There was conversation between them
for about 15 minutes. While the deceased was sitting in
the shop he went into the basement of the shop to find
as to any old tyres were available to sell as requested by
the deceased and when he returned to the shop the
                                                             F
deceased was not found in the shop. Then he found
crowd in the street and when he went to the place to
know as to what transpired found the deceased lying
completely soaked in blood. He had died at the place of
occurrence. Within 5-10 minutes the police came in gypsy
and removed the body to hospital in gypsy. It was G
specifically stated in his evidence that PW-5 who was
brother of the deceased came to the spot after 10 minutes
of the removal of the dead body and enquired from him
regarding the occurrence. He also stated in his evidence
                                                              H
   238     SUPREME COURT REPORTS             [201 O] 3 S.C.R.

A that he had not given the names of any individuals to the
  police in as much as he had not seen the actual
  occurrence of the incident. He repeatedly stated that PW-
  5, PW-13, PW-7 and PW-14 were not present when the
  police kept the dead body of deceased in gypsy. He also
B explained that there was no ·need for him to send any
  telephonic message had they been present at the scene
  of occurrence. This witness did not support the
  prosecution case. He was not subjected to any cross-
  examination by the prosecution. His evidence remained
c unimpeached. The evidence of PW-13 and PW-14 was
  more or less the same as of PW-5. [Paras 10 and 11] [245-
  D-H; 246-A-C]

       1.3. PW-18 was a Police Constable who along with
  driver PW-30 went in the gypsy to the spot and lifted the
D injured person into gypsy to take him to the hospital. He
  stated in his evidence that at that time except himself,
  driver PW-30 and Circle Inspector nobody else was
  present. He specifically stated that PW-5, PW-14 and PW-
  13 were not present at the place of occurrence at the time
E when he reached the. scene of offence. PW-29 is another
  Policeman who corroborated the evidence of Constable
  PW-18. In the same manner PW-30 driver of the gypsy
  corroborated the evidence of PW-18 and PW-29 stating
  that no one was present when they have lifted the body
F from the scene of occurrence and placed the same in
  gypsy. All of them were police personnel and on duty at
  the relevant time. There was no reason for them to
  depose falsely. It was nobody's case that PWs 6, 27, 29
  and 30 were not independent witnesses. There is no
G reason to disbelieve the evidence of PW-6. The evidence
  of PW-6, if it is to be taken into consideration, makes the
  presence of PWs 5, 13 and 14 highly doubtful at the scene
  of occurrence. There is no reason whatsoever to discard
  the evidence of PW-6 who is an independent witness. He
H was not present at the actual scene of offence when the
      JAVED MASOOD AND ANR. v. STATE OF                239
                 RAJAS THAN
deceased was subjected to attack even though PW-5, in         A
his evidence stated as if PW-6 was also present at the
time of attack. But PW-6 in categorical terms stated, by
the time he went to the scene of offence within a couple
of minutes, the deceased was lying dead in a pool of
blood and neither PW-5 nor PWs 13 and 14 were present         B
at the scene of offence. PW-5 is none other than the
brother of deceased and a highly interested witness
whose evidence was required to be carefully scrutinised.
The testimony of PW-6 cannot easily be surmounted by
the prosecution. It is not known as to why the public         c
prosecutor in the trial court failed to seek permission of
the court to declare him "hostile". His evidence is binding
on the prosecution as it is. No reason, much less valid
reason has been stated by the High Court as to how
evidence of PW-6 can be ignored. In the present case the
                                                              0
prosecution never declared PWs 6, 18, 29 and 30
"hostile". Their evidence did not support the prosecution.
Instead, it supported the defence. There is nothing in law
that precludes the defence to rely on their evidence.
[Paras 12 and 13]' [246-D-H; 247-A-F]
                                                              E
    Mukhtiar Ahmed Ansari v. State (NCT of Delhi) (2005)
5 sec 258, relied on.

     1.4. It is clear that the evidence of PW-6 completely
rules out the presence of PW-5 at the scene of offence. It    F
is thus clear that PW-5 was not speaking truth, being
interested witness obviously made an attempt to implicate
the appellant in the case due to previous enmity. The
entire prosecution case rests upon the Parcha Bayan
lodged by PW-5. Once his presence is disbelieved, the         G
whole case of the prosecution collapses like a pack of
cards. In addition, the evidence of PWs 18, 29 and 30 who
are all independent witnesses, also cast a serious
shadow on the evidence of PWs 5, 13 and 14 as regards
their presence at the scene of offence. It is under those
circumstances, it is difficult and impossible to place any    H
    240      SUPREME COURT REPORTS                [2010) 3 S.C.R.


A reliance whatsoever on the evidence of PW-5 who is a
  highly interested and partisan witness. No reliance can
  be placed on his evidence in order to convict the
  appellants of the charge under Section 302, IPC. For the
  same reasons, the evidence of PWs 13 and 14 also is to
B be discarded. None of them was speaking truth. The
  Courts below altogether ignored these vital aspects of the
  matter. On such careful analysis, it is difficult to accept
  the evidence of PWs 5, 13 and 14 to sustain the
  conviction and sentence imposed on the appellants.
c There is no other acceptable evidence on record based
  on which the charge could be held proved against the
  appellants. [Paras 15 and 16) [248-E-H; 249-A]
                          Case Law Reference:

D         (2005) 5 sec 258        relied on            Para 13
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1522 of 2008.
      From the Judgment & Order dated 4.3.2008 of the High
E Court for Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal
  Appeal No. 1089 of 2003.
          A. Sharan, AK. Singh, Samir Ali Khan for the Appellant.
          R. Gopalakrishnan for the Respondent.
F         The Judgment of the Court was delivered by
        8. SUDERSHAN REDDY, J. 1. This appeal pursuant to
    the special leave granted is directed against the concurrent
    judgments.
G     2. The two appellants were tried for offences punishable
  under Sections 147, 323, 324, 302 of !PC. The trial court
  convicted both of them for the offences punishable under
  Sections 148, 201 and 302 IPC. On appeal, the High Court,
  however, confirmed the sentences awarded against the
H appellants for the offences punishable under Section 302 of the
      JAVED MASOOD AND ANR. v. STATE OF                     241
      RAJASTHAN [B. SUDERSHAN REDDY, J.]
IPC while setting aside the conviction of the appellants of the     A
charges under Sections 201 and 148 IPC. The prosecution
case is as follows :

      On May 25, 1999 at about 1.00 p.m., Chuttu @
Nizamuddin (PW-5) lodged a Parcha Bayan (Ex.P-12) before            8
the Police Sub-Inspector of Kotwali, Tonk inter-alia stating that
at about 12.30 in the noon he along with Saleem (PW-7) and
Noor (PW-13) were getting a truck repaired at Rajasthan
Tyrewala near Roadways Depot, Tonk. One Mohamaad Deen
@ Mulla (deceased) came at the shop of Ayub Bhai (PW-6).            C
All of a sudden about 10-12 persons equipped with deadly
weapons such as gupties, swords, knives and gandasas came
there and surrounded the deceased. Javed Masood (A.1),
Syed Najeeb Hassan (A.2), Ashraf and Aziz were armed with
gupties and others were equipped with swords and knives.
Javed Masood inflicted blow with gupti on the chest of the          D
deceased, Najeeb and others inflicted blows on neck, face and
back. One Gullo and Sadiqque gave blows with swords on
hands of deceased. Thereafter the assailants fled away from
the scene of occurrence under the impression that Mohammad
Deen@ Mulla was dead. Meanwhile police patrol van reached           E
at the spot and removed the deceased to the hospital where
he was declared dead. On the basis of Parcha Bayan, the FIR
No.184/99 (Ex. P-48) was registered and investigation
commenced. On completion of investigation, charge-sheet was
filed against the appellants and investigation was kept pending     F
under Section 173(8) Cr.P.C. against the rest of the individuals
named in the Parcha Bayan. The prosecution in support of its
case examined as many as 33 witnesses and got marked
certain documents and material objects in evidence. The
appellants denied the charges and claimed trial.                    G

      3. The trial court accepted the prosecution case and
convicted and sentenced the accused, as stated above. The
trial court held that the prosecution proved its case beyond
reasonable doubt against the appellants and held them guilty
                                                                    H
    242       SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A   of having entered into a criminal conspiracy, unlawful assembly
    and committing murder of the deceased. The High court,
    however, confirmed the conviction of the appellants only under
    Section 302 IPC and acquitted them of the rest of the charges.

         4. In the appeal before the High Court and as well as
8
    before us, it was contended on behalf of the defence that the
    incident took place out of acute enmity. The evidence of highly
    interested eye-witness should be rejected as there is likelihood
    of implicating some innocent persons.

C         5. Shri Amarender Sharan, learned senior counsel, inter-
    alia, submitted that the presence of alleged eye-witnesses at
    the scene of offence is highly doubtful and no reliance can be
    placed on their evidence. He relied on the evidence of
    Mohammad Ayub-PW-6 and police personnel-Laxmi Narayan-
0   PW-29, Suresh Kumar-PW-18 and Ranjeet Singh-PW-30 in
    this regard. The learned counsel appearing for the State
    supported the judgment under appeal.

        6. As has been rightly held by the courts below that the
E death of Mohammad Deen @ Mulla was homicide in nature.
  As per post-mortem report (Ex.P-43) following ante mortem
  injuries were found on the dead body:

          1. Incised wound 1" x Y:z" sub cut deep right parietal
          posterior part, elliptical
F
          2. Incised wound 1" x Y:z" pharyngeal cavity deep elliptical
          vertical bleeding + Rt. carotid region ant. to ear lobule.

          3. Incised wound Y:z" x ~" mu~cle deep on Rt. parotid
          region anterior to injury No. 2 vertical elliptical.
G
          4. Contusion 3" x 2" It. forehead above It. eye brow with
          black eye.

          5. Incised wound 1" x 1/8" sub cut elliptical 1%" lateral to
H         eye on face right vertical.
 JAVED MASOOD AND ANR. v. STATE OF                        243
 RAJASTHAN [B. SUDERSHAN REDDY, J.]
6. Incised wound elliptical 1W' x %" muscle deep on upper        A
1/3rd forearm Lt. vertical.

7. Incised wound elliptical 1%" x %"muscle deep on It. arm
upper 1/3 vertical.

8. Penetrating incised wound 1%" x %" Rt. chest cavity           B
deep 2" above & Yi" medial to right nipple on anterior right
chest wall elliptical, directing down & medial aspect.

9. Penetrating incised wound 1%" x Yi" chest cavity deep
elliptical, oblique 1%" medial to injury No. 8 giving            c
downward & laterally on ant. chest wall (Rt.)

10. Incised wound 1%" x %" muscle deep elliptical oblique
direction medial & lateral aspect Rt. lower chest mammary
line interiorly.
                                                                 D
11. Penetrating Incised wound 1%" x %" abdominal cavity
deep on left hypochondrium on abdominal wall elliptical
obliquely placed 2" below sub costal Lt. marg & 2" It. lateral
to mid line.
                                                                 E
12. Incised wound %" x 1/8" sub cuticle 4%'' below left
nipple transverse elliptical.

13. Abrasion 3 No. 2%", 2", 1" linear oblique each parallel
to each other 4" lat. & above to umblicus on It. Ant.
abdominal wall.                                                  F

14. Incised wound 4" x Yi" muscle oblique above down 2"
lateral to (Rt. nipple, on Rt. chest anterior lat.)

15. Incised wound 1%" x %" muscle deep elliptical                G
horizontally in mid axillary region (right).

16. Penetrating Incised wound 1%" x %"chest cavity deep
Rt. mid axillary region %" below injury No. 15, elliptical
vertical bleeding.
                                                                 H
    244      SUPREME COURT REPORTS                [2010] 3 S.C.R.


A         17. Incised wound 1-W' x %" x scapular deep horizontal
          elliptical Rt. back chest inter scapular region.

          18. Incised wound 1Y4" x Y4" muscle deep left to mid line
          of back on chest vertical elliptical
B         19. Incised wound 1Y4" x Y4" muscle deep transverse %"
          right medial to mid line on Rt. back of chest

          20. Incised wound Y2" x %" muscle deep on left lower to
          chest back in lower part elliptical horizontal.
c         21. Abrasion (three) %" x %" each three No. number Rt.
          knee joint.

          22. Abrasion (two)%" x %"on left knee joint.

o       7. The cause of death according to the medical opinion
    was due to the excessive haemorrhage on account of injuries
    caused to right lung and liver. The injuries found on the chest
    were penetrating in nature.

        8. The short question that arises for consideration in this
E appeal is as to whether the courts below committed any
   manifest error in relying on the evidence of Chuttu (PW-5), Noor
   (PW-13) and Rayees (PW-14) to convict the appellants for the
  charge under Section 302 IPC. It is well settled and needs no
  restatement at our hands that concurrent findings of facts are
F not usually interfered with by this court in exercise of its
  jurisdiction under Article 136 of the Constitution of India by
  reappreciating the evidence unless it is clearly established that
  the courts below altogether ignored vital piece of evidence and
  rested their conclusion placing reliance on the evidence which
G cannot be accepted on the face of it.

       9. Chuttu (PW-5) who lodged the FIR is an Jmportant
  witness. He more or less confirmed in the examination-in-chief
  as to what has been stated by him in Parcha Bayan (Ex.P-12).
H He specifically alleged that Javed Masood (A.1) inflicted gupti
      JAVED MASOOD AND ANR. v. STATE OF                      245
      RAJASTHAN [B. SUDERSHAN REDDY, J.]
blow on the chest of the deceased and Najeeb (A.2) had               A
inflicted with gupti on abdomen and chest. It is in his evidence
that the occurrence was witnessed by Husain (PW-4), Rayees
(PW-14) and Ayub Bhai Tyrewala (PW-6). He stated that while
assault was going on the deceased he remained shouting and
no one came to rescue the deceased. Meanwhile, a white               B
coloured police gypsy arrived at the scene of offence in which
the deceased was removed to hospital where Mullaji was
declared dead. He admitted that police gypsy reached just after
two minutes of occurrence. He also admitted that there was an
enmity between him and the appellants as Javed Masood                c:
lodged a case against him and PW 14 and others.

       10. The evidence of Ayub Bhai (PW-6) is very crucial. It is
 in his evidence that on the fateful day the deceased alone had
 come on a motorcycle to his shop at about 12.30 p.m. to repay
                                                                     01
 an old debt. The deceased requested for sale of some more
 tyres on credit basis to which he refused. There was
 conversation for about 15 minutes in that regard. While the
 deceased was sitting in the shop he went into the basement
 of the shop to find as to any old tyres were available to sell as
 requested by the deceased and when he returned to the shop          E '·
 the deceased was not found in the shop. Then he found crowd
 in the street parallel to his shop and went to the place to know
as to what transpired and found the deceased was tying
overturned completely soaked in blood. He had died at the
place of occurrence. Within 5-10 minutes the police came in          F    1


gypsy and removed the body to hospital in gypsy. It is
specifically stated in his evidence that PW-5-Chuttu who is
none other than the brother of the deceased came to the spot
after 10 minutes of the removal of the dead body and enquired
from him regarding the occurrence and he ·informed that the          G·
police took him to the hospital. He also stated in his evidence
that he has not given the names of any individuals to the police
in as much as he had not seen the actual occurrence of the
incident. It is also in his evidence that immediately after the
incident he telephoned to one Habib with a request to                H
    246      SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A communicate the message to Chuttu about the occurrence. He
  repeatedly stated that Chuttu (PW-5), Noor (PW-13), Saleem
  (PW-7) and Rayees (PW-14) were not present when the police
  kept the dead body of Mullaji (deceased) in gypsy. He also
  explained thaJ there was no need for him to send any telephonic
B message had they been present at the scene of occurrence.
  Th.is witness did not support the prosecution case. He was not
  subjected to any cross-examination by the prosecution. His
  evidence remained unimpeached.

       11. The evidence of Noor (PW-13) and Rayees (PW-14)
C is more or less the same as of PW-5 and therefore no detailed
  discussion is required about their evidence.

          12. Suresh Kumar (PW-18) is a Police Constable who
    along with driver Ranjit Singh (PW-30) went in the gypsy to the
D   spot and lifted the injured person into gypsy to take him to the
     hospital. He stated in his evidence that at that time except
     himself, driver Ranjit Singh (PW-30) and Circle Inspector
     nobody else was present. He specifically stated that Chuttu
    (PW-5), Rayees (PW-14) and Noor (PW-13) were not present
E   at the place of occurrence at the time when he reached the
    scene of offence. Laxshami Narayan (PW-29) is another
    Policeman who corroborated the evidence of Constable Suresh
    Kumar (PW-18) stating that he and Constable Suresh Kumar
    and driver Ranjit Singh (PW-30) kept the body of the injured
F   (deceased) in the gypsy and went to Sahadat hospital. There
    was crowd near the injured person but no relative of deceased
    was present. In the same manner Ranjit Singh (PW-30) driver
    of the gypsy corroborated the evidence of PW-18 and PW-29
    stating that no one was present when they have lifted the body
G   from the scene of occurrence and placed the same in gypsy.
    All of them were police personnel and on duty at the relevant
    time. There is no reason for them to depose falsely. It is
    nobody's case that PWs 6, 27, 29 and 30 are not independent
    witnesses. There is no reason to disbelieve· the evidence of
H   PW-6 and no valid reason has been suggested as to why his
        JAVED MASOOD AND ANR. v. STATE OF                    247
        RAJASTHAN [B. SUDERSHAN REDDY, J.)
evidence cannot be relied on and taken into consideration. The      A
evidence of PW-6, if it is to be taken into consideration, makes
the presence of PWs 5, 13 and 14 highly doubtful at the scene
 of occurrence. We do not find any reason whatsoever to
 discard the evidence of PW-6 who is an independent witness.
 He was not present at the actual scene of offence when the         B
deceased was subjected to attack even though PW-5, in his
evidence stated as if PW-6 was also present at the time of
attack. But PW-6 in categorical terms stated, by the time he
went to the scene of offence within a couple of minutes, the
deceased was lying dead in a pool of blood and neither PW-          c
5 nor PWs 13 and 14 were present at the scene of offence.
PW-5 is none other than the brother of deceased and a highly
interested witness whose evidence was required to be carefully
scrutinised and precisely for that reason we have looked into
the evidence of PW-5 with care and caution. The testimony of
                                                                    0
Mohammad Ayub (PW-6) cannot easily be surmounted by the
prosecution. He has testified in clear terms that PWs 5, 13 and
14 were not present at the scene of occurrence. It is not known
as to why the public prosecutor in the trial court failed to seek
permission of the court to declare him "hostile". His evidence      E
is binding on the prosecution as it is. No reason, much less
valid reason has been stated by the Division Bench as to how
evidence of PW-6 can be ignored.

     13. In the present case the prosecution never declared
PWs 6,18, 29 and 30 "hostile". Their evidence did not support       F
the prosecution. Instead, it supported the defence. There is
nothing in law that precludes the defence to rely on their
evidence. This court in Mukhtiar Ahmed Ansari vs. State (NCT
of Delh11) observed:
                                                                    G
      "30. A similar question came up for consideration before
      this Court in Raja Ram v. State of Rajasthan, (2005) 5
      sec 272. In that case, the evidence of the Doctor who was
      examined as a prosecution witness showed that the

1.   (2005) 5 sec 258.                                              H
    248      SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A         deceased was being told by one K that she should
          implicate the accused or else she might have to face
          prosecution. The Doctor was not declared "hostile". The
          High Court, however, convicted the accused. This Court
          held that it was open to the defence to rely on the evidence
B         of the Doctor and it was binding on the prosecution.

          31. In the present case, evidence of PW1 Ved Prakash
          Goel destroyed the genesis of the prosecution that he had
          given his Maruti car to police in which police had gone to
          Bahai Temple and apprehended the accused. When Goel
c         did not support that case, accused can rely on that
          evidence."

        14. The proposition of law stated in the said judgment is
    equally applicable to the facts in hand.
D
         15. It is clear that the evidence of PW-6 completely rules
  out the presence of Chuttu (PW-5) at the scene of offence. It is
  thus clear that PW-5 was not speaking truth, being interested
  witness obviously made an attempt to implicate the appellant
E in the case due to previous enmity. Be it noted that the entire
  prosecution case rests upon the Parcha Bayan (Ext. P12)
  lodged by PW-5. Once his presence is disbelieved, the whole
  case of the prosecution collapses like a pack of cards. In
  addition, the evidence of PWs 18, 29 and 30 who are all
  independent witnesses, also cast a serious shadow on the
F evidence of PWs 5, 13 and 14 as regards their presence at
  the scene of offence. It is under those circumstances, we find
  it difficult and impossible to place any reliance whatsoever on
  the evidence of PW-5 who is a highly interested and partisan
  witness. No reliance can be placed on his evidence in order
G to convict the appellants-of the charge under Section 302, IPC.
  For the same reasons, the evidence of PWs 13 and 14 also is
  to be discarded. None of them was speaking truth.

      16. The Courts below altogether ignored these vital
H aspects of the matter which compelled us to carefully analyze
        JAVED MASOOD AND ANR. v. STATE OF                    249
        RAJASTHAN [B. SUDERSHAN REDDY, J.]
their evidence. On such careful analysis, we find it difficult to   A
accept the evidence of PWs 5, 13 and 14 to sustain the
conviction and sentence imposed on the appellants. There is
no other acceptable evidence on record based on which the
charge could be held proved against the appellants.
                                                                    B
     17. For the aforesaid reasons the conviction of the
appellants and the sentence imposed on them is set aside and
they are directed to be released forthwith.

       18. The appeal is accordingly allowed.
                                                                    c
D.G.                                            Appeal allowed.